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Posted by eric_k_johnson on October 14, 2011
Residency (Utah Code § 30-3-1)[1]
The first requirement for filing for divorce in Utah is residency. At least one of the parties must be an “actual and bona fide” resident of the state of Utah for at least three months prior to filing for divorce here. In addition, one or both of the parties must be an “actual and bona fide” resident of the county in which you file. Basically this means you have to reside in a particular county within the state of Utah for three consecutive months before filing in that county. For example, if you and your spouse moved to Utah 6 months ago, lived in Box Elder County for 4 months, then separated and only you have been residing in Davis County for 2 months, you would have to wait an additional month before filing in Davis County. If your spouse continued to reside in Box Elder County, however, you could file for divorce in Box Elder County because your spouse meets the three consecutive month requirement in that county. If you do not meet (And no, spending a couple nights per week at your mistress’s house for several months–with whom you eventually plan to move in—does not count as “residing” in the county where she lives.)
With regard to residency requirements in cases where the spouse who files for divorce is a member if the armed forces and is not a legal resident of this state, he/she must have been stationed in this state under military orders, for three months next prior to the commencement of the action.
Utah Uniform Child Custody Jurisdiction and Enforcement (Utah Code §78B-13-201)
If you and your spouse have minor children at the time of your divorce, you must also meet certain requirements in order for the courts to have jurisdiction over child custody determination. A Utah court only has jurisdiction to make an initial child custody determination if at least one of the following is met:
1. this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state
2. a court of another state does not have jurisdiction under paragraph 1, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 78B-13-207 or 78B-13-208; and
a. the child and the child’s parents, or the child and at least one parent or a person acting as a parent have a significant connection with this state other than mere physical presence; and
b. substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
3. all courts having jurisdiction under paragraphs 1 or 2 have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 78B-13-207 or 78B-13-208; or
4. no state would have jurisdiction under paragraphs 1, 2 or 3.
(“Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.)
Bottom line: If you have minor children, you need to make sure you and/or your spouse meet the residency requirement (reside at least three consecutive months in the county in which you file) AND that the court in which you plan to file will have jurisdiction to make decisions regarding child custody. You must make sure both of these requirements are met BEFORE you file or you will likely find yourself spending unnecessary funds to fight jurisdictional objections before you even begin to address the issues of your divorce action. And yes, the opposing party can raise jurisdictional objections even if you only filed one day earlier than you should have.
[1] Utah Code §30-3-1(2), which governs residency requirements for jurisdiction over a divorce action, provides, in pertinent part:
(2) The court may decree a dissolution of the marriage contract between the petitioner and respondent on the grounds specified in Subsection (3) in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where action is brought, or if members o the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders, for three months next prior to the commencement of the action.
(Emphasis added)
When the time period is measured in months or years from a certain date, the day from which the time period is to run is excluded and the same calendar date of the final month or year is included. Wilcox v. Geneva Rock Corp., 911 P.2d 367, 369 (Utah 1996) (citing Gilroy v. Lowe, 626 P.2d 469, 471 (Utah 1981) (citing Albrecht v. Uranium Services, Inc., Utah, 596 P.2d 1025 (1979)) See also Rule 6, Utah Rules of Civil Procedure.
The Wilcox and Gilroy cases mean that one is not deemed a resident for the minimum 3-month period (3 actual months, not just 90 consecutive days) until the day after the three-month period is elapsed. Where no such residence is found to exist, the court has no power to act further. Weiss v. Weiss, 179 P.2d 1005, 1007-1008 (Utah 1947).
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